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Responding to “Offensive” Speech with Constructive Speech at the University of Mary Washington

According to Jeff Branscome in The Free Lance-Star, University of Mary Washington freshman Rob Mariani “is facing college disciplinary action for disrupting community values and disorderly conduct after the school’s student newspaper ran a story about a racially insensitive poster found in a dorm.” Mariani had put the poster outside his dorm room door, and it or a copy of it somehow ended up in a dorm refrigerator, where it was discovered by cleaning staff, who complained. The poster, according to Branscome, “pictured an emotional black basketball player embracing his coach and read, ‘Slavery Reinstated: Catch Yourself a Strong One.’”

The school’s acting president, Rick Hurley, is now in a difficult position. He has done what he may, speaking out against the poster and facilitating campus dialogue. But to his credit, he realizes that he cannot do everything that some on campus want him to do. According to a follow-up article by Branscome, Hurley has said (in Branscome’s words) that “the university needs to be careful not to violate First Amendment rights.” This would mean, actually, ending the investigation of Mariani and assuring him and all students that they cannot face disciplinary action for the constitutionally protected display of a poster—not even under the cover of charges of “disrupting community values” or “disorderly conduct,” even if almost everyone on campus found the poster deeply offensive.

Mariani’s First Amendment rights are violated simply by placing him under investigation for having displayed the poster. But as Hurley said in a phone interview with Branscome, although the poster may violate the university’s values, it is not clear “how you prosecute for violations of those values.” At a public university like the University of Mary Washington, you simply cannot punish a student for failing to express the right values or for expressing the wrong values.

This is a principle already understood by Chief of Police James Snipes. In an article in the school newspaper, The Bullet, by Katy Burnell and Justin Toney, Snipes said that “Under the hate crimes statutes, it would have to be directed at someone. In this case, no crime has technically occurred.” Mariani was not prosecuted from the start because no crime had been committed. Likewise, no school policy that would ban the display of a poster on the basis of content would pass constitutional muster. As Police Officer Joe Kauffman stated in the article, “This was a freedom of speech issue.” He added, “I cannot do anything legally.”

And he is right.

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